Shanholtzer v. C. Brubaker
| Decision Date | 06 November 1911 |
| Citation | 140 S.W. 626,159 Mo.App. 366 |
| Parties | P. H. SHANHOLTZER, Respondent, v. C. BRUBAKER, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Vernon Circuit Court.--Hon. B. G. Thurman, Judge.
AFFIRMED.
Cause affirmed.
S. A Wright and M. T. January for appellant.
A. J King and H. C. Clark for respondent.
This is a suit to recover commission for the sale of land. The evidence tends to show on the part of respondent that appellant was the owner of 6781 acres of land in Nowata county, Oklahoma, in December, 1906; that he claimed said land had cost him $ 15,000; that he contracted with respondent to sell the same for him and as a compensation for his services in the event of sale appellant was to pay him all above $ 15,000 he received for it; that respondent procured a purchaser in the person of George W. Lane, who contracted that he would buy the land at the price and sum of $ 18,000; that he would pay $ 1500 cash and secure the deferred payment by a deed of trust on the land; that respondent communicated the offer of purchase by said Lane to appellant, and that appellant in all things accepted the proposition, and by deeds duly executed, conveyed said land to said Lane on March 21, 1907; that after the transfer of the land by appellant, respondent demanded of the appellant the amount due him; to-wit, $ 3600, under the contract, but respondent was induced by appellant to wait for the amount due him until the fall of 1907; that appellant having failed to pay respondent his demand, he commenced this suit.
The defendant's answer is a general denial and the pleading of a set-off based on a promissory note for $ 1000 which was admitted to be just by respondent.
Lane and respondent testified that the purchase price of the land was $ 18,000. Appellant testified that under the agreement with respondent, commission was not to be paid him until he had received from the purchaser the sum of $ 15,000, the amount he had invested in the land. The appellant endeavored to show that himself, respondent and Lane were partners in the land, but as that question was not submitted to the jury, it is not necessary to state the testimony relating to it. Appellant's testimony was also to the effect that the purchase price of the land was not $ 18,600, but $ 17,600. The jury accepted his statement of that amount being true, and found for plaintiff the difference between that sum and $ 15,600, the amount he claimed he had invested in the land, less the note and interest for $ 1000 pleaded as a set-off, to-wit, in the sum of $ 1360. Defendant appealed from the judgment.
The only issues appellant presented to the jury were by way of two instructions given at his instance by the court, one to the effect that the verdict should be returned for him unless the greater weight of the evidence showed that he agreed to pay a commission to respondent, the difference between the sum Lane agreed to pay for the land and $ 15,000 as soon as the trade with Lane was closed, or further, that by subsequent agreement he...
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